United States District Court, W.D. Michigan, Southern Division
ORDER APPROVING AND ADOPTING REPORT AND
J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE
Court has reviewed Magistrate Judge Green's Report and
Recommendation in this matter (ECF No. 70) and Defendants
Reynhout and Jolliffe's Objections. (ECF No. 72). Under
the Federal Rules of Civil Procedure, where, as here, a party
has objected to portions of a Report and Recommendation,
“[t]he district judge . . . has a duty to reject the
magistrate judge's recommendation unless, on de novo
reconsideration, he or she finds it justified.” 12
Wright, Miller, & Marcus, Federal Practice and Procedure
§ 3070.2, at 381 (2d ed. 1997).
the Rules provide that:
[t]he district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Fed R. Civ. P. 72(b)(3). De novo review in these
circumstances requires at least a review of the evidence
before the Magistrate Judge. Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981).
Court has reviewed de novo the claims and evidence presented
to the Magistrate Judge; the Report and Recommendation
itself; and Defendant's Objections. Plaintiff has not
filed any objections.
Magistrate Judge recommends granting Defendant Kalamazoo
County's Motion to Dismiss Count III of the Amended
Complaint for failure to state a claim (ECF No. 26) and
denying Defendants Reynhout and Jolliffe's Motion to
Dismiss Counts I and II. (ECF No.33). The Magistrate further
recommends denying Defendants Reynhout and Jolliffe's
Motion to Stay Discovery as moot. (ECF No. 44). In their
Objections, Defendants Reynhout and Jolliffe contend the
Magistrate erred when he found the allegations in
Plaintiff's Amended Complaint sufficient to state a claim
of excessive force and deliberate indifference. They further
object to the Magistrate's recommendation concerning
qualified immunity. Defendants' objections will be
initially aver the Magistrate performed “guess
work” by analyzing Plaintiff's claims under the
Eighth Amendment. Plaintiff's complaint, they contend,
does not state whether Plaintiff was a pre-trial detainee or
a convicted prisoner at the time of the complained of
actions. This matters, Defendants claim, because if Plaintiff
was a pre-trial detainee, the Magistrate should have applied
a Fourteenth Amendment analysis. Defendants have not offered
a reason to disturb the Magistrate's recommended
decision. Whether it is the Fourteenth Amendment or the
Eighth Amendment at play, Plaintiff has stated a claim. If
anything, the Eighth Amendment standard utilized by the
Magistrate is more favorable to the Defendants.
either framework, however, Defendants contend Counts I and II
of the Amended Complaint amount to little more than “an
unadorned, the defendant-unlawfully-harmed-me
accusation.” (ECF No. 72, PageID.297) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Plaintiff has plainly done more than that. As correctly
recited by the Magistrate, Plaintiff's Amended Complaint
• Officer Jolliffe placed Plaintiff in a choke hold
while Plaintiff was standing still.
• Officer Jolliffe used the choke hold to take Plaintiff
to the ground in such a way that Plaintiff felt as if his
neck was going to break and that he was unable to breathe.
• Plaintiff told Officer Jolliffe that he was unable to
breathe, and the officer responded by yelling “I
don't give a fuck.” • Officer Reynhout used
excessive force by placing Plaintiff in further restraint
even though Plaintiff was compliant.
• While Plaintiff was restrained on the ground, both
officers kneeled into Plaintiff's spine causing spinal
injuries, nerve damage, and emotional distress.
• Despite Plaintiff's cries of pain, the officers
were deliberately indifferent to ...